State v. Jones

[Cite as State v. Jones, 2022-Ohio-2270.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110840
v. :
JAVIER JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 30, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-642458-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey Schnatter, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Javier Jones (“Jones”), appeals his convictions
for attempted murder, felonious assault, and having weapons while under disability.
For the following reasons, we affirm.
I. Facts and Procedural History
In August 2019, Jones was charged in a 14-count indictment. Counts
1, 4, 7, 9, and 11 charged him with attempted murder in violation of R.C. 2923.02
and 2903.02(A), a first-degree felony. Counts 2 and 5 charged him with felonious
assault in violation of R.C. 2903.11(A)(1), a second-degree felony. Counts 3, 6, 8, 10,
and 12 charged him with felonious assault in violation of R.C. 2903.11(A)(2), a
second-degree felony. Count 13 charged him with improperly discharging a firearm
into a habitation in violation of R.C. 2923.161(A)(1), a second-degree felony.
Count 14 charged him with having weapons while under disability in violation of
R.C. 2923.13(A)(2), a third-degree felony. Each of the counts carried one-year,
three-year, and 54-month firearm specifications.1
The matter proceeded to a jury trial in June 2021, at which the
following relevant evidence was adduced.
On May 18, 2019, a group of relatives and friends that included
M.Z.B., M.L.B., K.R., R.M., S.R., F.J., and M.L. (“victims”), were hanging out on the
porch of M.Z.B. and M.L.B.’s apartment (“Apartment F”) in the King Kennedy
housing complex (“King Kennedy”). M.L.B. testified that he and his brother M.Z.B.
had moved to King Kennedy from the Garden Valley housing complex (“Garden
Valley”) a year and a half before the incident and that residents of King Kennedy and
1 On June 14, 2021, the state deleted the 54-month firearm specifications from all
of the counts and the one- and three-year firearm specifications from Count 14. Jones
elected to have Count 14 tried to the jury based on a stipulated jury instruction that Jones
“ha[d] been adjudicated a delinquent child for the commission of an offense that prevents
him from legally possessing a firearm.”
Garden Valley share a mutual dislike for each other. M.L.B. testified that while the
victims were standing on the porch of Apartment F, a group of young men
approached them and stated that the victims should not be outside. R.M. testified
that one person in this group, known as “Frank” and later identified as Jones, began
arguing with M.L.B. and threatened R.M. with “gun violence.” M.L.B. testified that
he saw a gun in Jones’s waistband. M.L.B. and R.M. both testified that Jones stood
about six to eight feet from the porch, and when the victims refused to go inside,
Jones and his group left the area.
R.M. testified that the victims then walked to the local recreation
center, where they spent the rest of the day, and returned to the porch of Apartment
F after dark. M.L.B.’s testimony differed from R.M.’s testimony on this point.
M.L.B. recalled that the victims had not spent the day at the recreation center. R.M.
testified that as the victims stood on the porch, he observed Jones walk by and then
return to the area with two young men. R.M. testified that he observed Jones put
on a black hoodie and circle behind another apartment building (“Apartment G”)
located about 60 feet across a courtyard from Apartment F. The porches of
Apartments F and G face each other. M.L.B testified that he saw Jones “peeping” on
them from the corner of Apartment G and, suspecting that shooting was imminent,
tried to push the victims from the porch into Apartment F. R.M. testified that he
observed Jones emerge from the corner of Apartment G and begin shooting at the
victims. M.L.B. testified that K.R. was shot in the leg. K.R. sustained a femoral
fracture from this gunshot wound. M.L.B. testified that his brother M.Z.B. fell where
he stood on the porch, having been shot in the head. M.Z.B. was still on life support
at the time of trial.
Patrol officers Samuel Pelsnik (“Officer Pelsnik”) and John Foster
(“Officer Foster”) testified that they were the first officers from the Cleveland Police
Department to respond to the shooting and observed that officers from the
Cleveland Metropolitan Housing Authority (“CMHA”) were already on scene. The
officers described that they encountered a lot of commotion when they arrived, with
many King Kennedy residents standing outside screaming and crying. Officers
Pelsnik and Foster testified that the officers struggled to get information while
interviewing witnesses. They learned some information, but witnesses refused to
give their names. Officer Pelsnik attributed their reluctance to fear of reprisals if
they were seen giving information to the police.
Cleveland Police Detective Mark Peoples (“Detective Peoples”)
testified that 19 officers initially responded to the scene. Detective Peoples testified
that the police recovered four spent shell casings from where Jones was spotted
firing near the porch of Apartment G but found no bullet holes in Apartment F.
Officer Pelsnik testified that one of the victims, F.J., stated that Jones had fired two
shots into the air. R.M. testified that he had named “Frank” as the shooter to one of
the officers on the scene. The name “Frank,” however, did not appear in any police
reports. R.M. testified that after he arrived at Rainbow Babies and Children’s
Hospital (“UH”), where M.Z.B. had been transported following the shooting, R.M.
informed A.H., M.Z.B. and M.L.B.’s mother, that Frank was the shooter. A.H.
testified that she also received social media images from several people purporting
to identify “Frank.” A.H. testified that she sent these images to Cleveland Police
Detective John Vinson (“Detective Vinson”), who had been assigned to investigate
the shooting.
Detective Vinson testified that he circulated these photos among
Cleveland police detectives and CMHA police, and one CMHA officer who regularly
worked the King Kennedy area identified “Frank” as Jones. Vinson testified that he
arranged a photo array to be blindly administered to R.M. at UH two weeks
following the shooting and R.M. positively identified Jones as the shooter, writing
alongside this identification that he was 100% certain. R.M. also testified that he
was certain Jones was the shooter. Vinson testified that, after repeated attempts to
meet with M.L.B. following the shooting, he was finally able to arrange a photo array
to be blindly administered to M.L.B. a year and four months later, and M.L.B.
positively identified Jones as the shooter. During his testimony, M.L.B. explained
that his delay in identifying Jones as the shooter was that he needed time to process
that his brother M.Z.B. was shot and he feared retaliation from Jones.
A.H. testified that during trial, she received pictures posted to social
media showing R.M. on the witness stand with an image of a rat crossed out and a
statement that people were going to get “hurt.” A.H. also testified that just before
she took the witness stand, she received an Instagram photo depicting Jones and
captioned “Free Frank” (“‘Free Frank’ photo”). The trial court permitted the “Free
Frank” photo to be shown to the jury but voir dired each juror to ensure that the
threats would be considered solely for witnesses credibility; that each juror
understood Jones took no part in producing the “Free Frank” photo or in causing
this photo to be produced; and that the photo could be used only for the purpose of
identification – that a member of the public who attended the trial believed Jones
was named “Frank.” The trial court removed the person who took the photo and
reiterated that cellphones were not permitted in the courtroom. The trial court also
gave the state and defense an opportunity to voir dire each juror, after which trial
resumed. Jurors were initially concerned that the photos had also shown the jury,
but the trial court reassured each juror that no images were found depicting the
jurors. Counsel for Jones moved for a mistrial based on the admitted testimony
about the threats as well as the “Free Frank” photo. The trial court denied the
motion.
At the close of the evidence, the state moved to dismiss Counts 7-13
of the indictment, and Count 14 was renumbered as Count 7. The jury was
instructed and began deliberating in the late afternoon of June 21, 2021. On
June 23, Juror No. 6 requested to step down as jury foreperson, and the jury elected
Juror No. 11 to replace her. The next day, Juror No. 11 arrived to court early to share
with the jury bailiff that Juror No. 4 had been acting aggressively toward other
jurors, especially Juror No. 6 while she was trying to facilitate discussion, and was
not giving the other jurors an opportunity to express their opinions. Later that same
morning, Juror No. 11 sent the following question to the judge through the jury
bailiff: “What happens if the jury can’t reach a unanimous decision?”
The trial court considered a Howard charge,2 but after discussing the
matter with the parties, chose to suspend deliberations and question several jurors
on the record to learn more about the complaint concerning Juror No. 4. The trial
court also permitted the parties to question the jurors. The trial court first
questioned Juror No. 11, asking him to relate his complaint about Juror No. 4 and
advising him not to disclose the status of the deliberations. Juror No. 11 stated that
Juror No. 4’s behavior forced them to discontinue deliberating on June 22, because
Juror No. 4 and the former foreperson, Juror No. 6, had started shouting at each
other, after which Juror No. 11 noticed that Juror No. 4’s lip was quivering and his
eyes were watering. Juror No. 11 also stated that in the afternoon of June 23, Juror
No. 4 continued to talk over other jurors and ignored Juror No. 6’s attempts to
facilitate discussion. Some of the other jurors asked Juror No. 4 to be quiet and let
the other jurors speak. Juror No. 4 replied, “Come over here and make me shut up.”
Afterward, Juror No. 6 said she could no longer serve as foreperson. Juror No. 11
noted that Juror No. 4 was telling stories about the 2012 shootings at Chardon High
School, where he witnessed one of his good friends get killed. Juror No. 11 stated
that he had been elected the new foreperson based on how Juror No. 4’s behavior
escalated from day to day. When asked if complaints about Juror No. 4 had anything
2 See State v. Howard, 42 Ohio St.3d 18, 24, 537 N.E.2d 188 (1989). A Howard
charge reminds deadlocked jurors that their duty is to decide the case if they can
conscientiously do so. Jones v. Cleveland Clinic Found., 161 Ohio St.3d 337, 2020-Ohio-
3780, 163 N.E.3d 501, ¶ 25, citing Ohio Jury Instructions, CV Section 319.07 (Rev. Feb.
25, 2012). The charge challenges the jury to try a final time to reach consensus. Id., citing
State v. Robb, 88 Ohio St.3d 59, 81, 2000-Ohio-275, 723 N.E.2d 1019 (2000).
to do with removing barriers to a unanimous decision, Juror No. 11 stated that the
issue stemmed from Juror No. 4’s behavior, not his position on the case.
The trial court then questioned Juror No. 4, who admitted that
several jurors were yelling at each other. The trial court removed Juror No. 4 to a
separate room and questioned Juror No. 6, cautioning her not to reveal anything
about the deliberations. Juror No. 6 stated that Juror No. 4 was monopolizing
discussion, became agitated whenever she tried to keep him on point, and refused
to follow turn-taking strategies (such as passing a ball or raising hands) that the
jurors had agreed to use to make their deliberations orderly and respectful. Juror
No. 6 recalled that Juror No. 4 had initially offered to serve as foreperson and
reluctantly agreed to Juror No. 6’s serving in that role. Juror No. 6 said she decided
to step down because of the personality conflict between her and Juror No. 4, which
was impeding the jury’s progress. Juror No. 6 added that the issue had nothing to
do with Juror No. 4’s position on the issues of the case, but rather his manner of
engaging in deliberations was causing others to disengage.
After this colloquy, the trial court resolved to remove Juror No. 4 and
replace him with an alternate. The parties agreed to his removal. After his removal,
Juror No. 4 threatened to expose the deliberations to the public. The trial court
reminded Juror No. 4 of the direction not to disclose the deliberations’ substance
and advised him that he could be held in contempt if he did so. Juror No. 4 agreed
not to disclose and was subsequently removed. Deliberations began anew with the
alternate juror.
The following day, June 25, 2021, the jury reached a guilty verdict on
Counts 1-7 and their accompanying specifications. The state elected to proceed to
sentencing on Counts 1 and 4. Counts 2 and 3 merged with Count 1, and Counts 5
and 6 merged with Count 4. The trial court advised that a presentence investigation
report was ordered but delayed by the probation department because Jones had
another case pending before the court. Jones elected to proceed to sentencing
without the presentence investigation report. When given a chance to address the
court, Jones professed his innocence and raised concerns about the “Free Frank”
photo admitted at trial, the trial court’s removal of Juror No. 4, and K.R.’s failure to
appear at trial.3 The trial court sentenced Jones to 6 years on the firearm
specifications associated with Counts 1 and 4, to be served consecutively and prior
to an indefinite sentence of 10-15 years pursuant to the Reagan Tokes Law on the
underlying attempted murder charge in Count 1, a consecutive term of 5 years on
the attempted murder charge in Count 4, and a concurrent term of 36 months for
having weapons while under disability in Count 7.4 The trial court advised Jones
that he was subject to a mandatory 5-year term of postrelease control and credited
him with 763 days of jail time. After consulting with the parties, the trial court
decided that the procedure for determining whether Jones must register as a violent
offender was improperly handled and therefore dismissed that requirement.
3 M.L.B. and R.M. were the only two victims to testify at trial. At the time of the
trial, M.Z.B. remained on life support, a material witness warrant had been issued for K.R.
but K.R. never appeared, F.J. was deceased, and the remaining victims refused to testify.
4 Counsel for Jones had objected to the Reagan Tokes advisement at his
arraignment.
Jones now appeals this judgment, raising four assignments of error
for review:
Assignment of Error I: Mr. Jones’s convictions were against the
manifest weight of the evidence.
Assignment of Error II: The trial court denied Mr. [Jones] the right to
fair trial by admitting numerous pieces of irrelevant and unfairly
prejudicial evidence of witness intimidation that was not connected to
him in any way.
Assignment of Error III: The trial court abused its discretion and
denied Mr. [Jones] the right to fair trial by improperly removing a
seated juror during deliberations.
Assignment of Error IV: The trial court imposed an unconstitutional
sentence under SB 201 in violation of appellant’s rights under the Fifth,
Sixth, and Fourteenth Amendments to the U.S Constitution and
Section I of the Ohio Constitution.
II. Law and Analysis
A. Weight of the Evidence
In his first assignment of error, Jones argues that his convictions are
against the manifest weight of the evidence because the state produced no physical
evidence tying Jones to the shooting and R.M., the state’s primary identification
witness, offered testimony that was inconsistent with M.L.B.’s testimony and the
testimony of the Cleveland police officers and detectives. The state argues that two
witnesses separately identified Jones as the shooter, and the absence of physical
evidence and minor inconsistencies in the witnesses’ testimony do not render the
convictions against the manifest weight of the evidence.
A challenge to the weight of the evidence questions whether the state
has met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678
N.E.2d 541 (1997). “‘[W]eight of the evidence involves the inclination of the greater
amount of credible evidence.’” State v. Harris, 8th Dist. Cuyahoga No. 109060,
2021-Ohio-856, ¶ 32, quoting Thompkins at 387. “Under the manifest weight-of-
the-evidence standard, a reviewing court must ask the following question: whose
evidence is more persuasive — the state’s or the defendant’s?” State v. Williams,
8th Dist. Cuyahoga No. 108275, 2020-Ohio-269, ¶ 86, citing State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. The reviewing court must
consider all the evidence in the record, all reasonable inferences therefrom, and the
credibility of the witnesses to determine “‘whether in resolving conflicts in the
evidence, the [trier of fact] clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.’”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st
Dist.1983). “‘The discretionary power to grant a new trial should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting Martin at 175.
Jones first argues that there was no physical evidence tying him to the
crime. This court has repeatedly held, however, that “‘a lack of physical evidence,
standing alone, does not render a defendant’s conviction against the manifest weight
of the evidence.’” State v. Johnson, 8th Dist. Cuyahoga No. 109041, 2020-Ohio-
5255, ¶ 78, quoting State v. Robertson, 8th Dist. Cuyahoga No. 106279, 2018-Ohio-
2934, ¶ 32; State v. Payne, 8th Dist. Cuyahoga No. 105965, 2018-Ohio-1399, ¶ 30.
Jones also argues that although the shooter was alleged to have worn
a black hoodie and used a particular handgun, neither the hoodie nor the handgun
was ever recovered, and no forensic evidence or circumstantial evidence connects
Jones to the shooting.
“Direct evidence exists when ‘a witness testifies about a matter within
the witness’s personal knowledge such that the trier of fact is not required to draw
an inference from the evidence to the proposition that it is offered to establish.’”
State v. Wachee, 8th Dist. Cuyahoga No. 110117, 2021-Ohio-2683, ¶ 36, quoting
State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Conversely,
“circumstantial evidence requires ‘the drawing of inferences that are reasonably
permitted by the evidence.’” Id., quoting id. “‘Circumstantial evidence is proof of
facts by direct evidence from which the trier of fact may infer or derive by reasoning
other facts in accordance with the common experience of mankind.’” Id., quoting
State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37. “Like any
fact, the state can prove the identity of the perpetrator by either circumstantial or
direct evidence.” Id. at ¶ 38, citing State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-
3667, 19 N.E.3d 888, ¶ 15. “Circumstantial evidence and direct evidence inherently
possess the same probative value.” State v. Jenks, 61 Ohio St.3d 259, 259, 574
N.E.2d 492 (1991), paragraph one of the syllabus.
Here, the state offered both direct and circumstantial evidence that
Jones was the shooter. R.M. and M.L.B. both testified that Jones had confronted
and threatened them several hours before the shooting. R.M. testified that Jones
approached them, began arguing with M.L.B., and threatened R.M. with “gun
violence.” M.L.B. testified that he observed a gun in Jones’s waistband. Both R.M.
and M.L.B. testified that Jones returned later that night, circled and emerged from
the corner of Apartment G, and began shooting at them from the porch area of
Apartment G. Four spent shell casings were recovered from this area. One bullet
struck M.Z.B. in the head. Another bullet struck K.R in the leg. Officer Pelsnik
testified that one of the victims, F.J., stated that Jones had fired two shots into the
air.
Through this testimony, the state presented direct evidence that
Jones was the shooter and fired at least two shots at the victims. Using the four
spent shell casings recovered from the scene, the state presented circumstantial
evidence showing approximately where Jones was standing when he fired upon the
victims. That the police recovered only two bullets from the victims corroborates
Officer Pelsnik’s testimony that one of the victims, F.J., who was deceased at the
time of trial, stated that Jones had fired two shots into the air. Even though the
police did not recover the black hoodie or the gun, the state presented not only direct
evidence that Jones was the shooter, but also circumstantial evidence of how the
shooting unfolded.
Jones next argues that R.M., the state’s primary identification
witness, offered inconsistent testimony. Jones contends that R.M.’s testimony that
the victims had returned to Apartment F from the recreation center shortly before
the shooting conflicted with M.L.B.’s testimony that they were not at the recreation
center that evening.
At trial, Jones attempted to impeach R.M.’s testimony with testimony
of a recreation-center employee who would testify to the recreation center’s hours
of operation on the day of the shooting. During the proffered testimony, this witness
stated that while the recreation center was closed well before dark, people from the
community were not prohibited from visiting the recreation center’s grounds. The
trial court rejected Jones’s attempt to impeach R.M. Based on this proffer, it is not
entirely clear from the record that R.M.’s and M.L.B.’s testimony is inconsistent
because R.M.’s testimony that the victims had visited the recreation center could
mean that they had visited the location surrounding the recreation center, and
M.L.B.’s testimony that they had not visited the recreation center could mean that
the victims had not gone inside the recreation center. This distinction was never
clarified at trial.
Also, the alleged inconsistency concerning whether the victims were
at the recreation center before returning to the porch of Apartment F, where the
shooting occurred, involves a collateral matter that is inconsequential in answering
the central question of whether Jones was the shooter. See State v. Beatty, 8th Dist.
Cuyahoga No. 54431, 1988 Ohio App. LEXIS 4706, 13-14 (Dec. 1, 1988) (collateral
issues receive less weight). In contrast to this collateral matter, R.M.’s and M.L.B.’s
testimony is consistent concerning more essential matters, such as Jones’s actions
on the day of the shooting and Jones’s identity as the shooter. R.M. and M.L.B. both
testified that Jones confronted them as they stood with the other victims on the
porch of Apartment F; that Jones carried a gun and stood six to eight feet away when
he threatened them; and that Jones returned to the area later in the day, emerged
from the corner of Apartment G, and began shooting at them.
Jones also maintains that R.M.’s testimony that he related Frank’s
name to the police on the night of the shooting conflicts with police reports and
testimony that the police received no information about the shooter’s identity that
night. Officers Pelsnik and Foster, however, both testified to the commotion they
witnessed when they arrived at King Kennedy following the shooting. The officers
stated that people were shouting and crying. The officers also testified that people
were fearful of being seen talking to police and withheld identifying information. It
is not surprising under these circumstances that if the name “Frank” were raised, it
might not have made it into a police report. Also, R.M. testified that he informed
A.H. of Frank’s name at the hospital later that night, and shortly after, A.H. relayed
this information, as well as social-media photos identifying Frank as Jones, to
Detective Vinson.
The inconsistencies Jones raises do not undermine R.M.’s credibility
enough to overcome R.M.’s and M.L.B.’s separate identifications of Jones as the
shooter. Nor do these inconsistencies establish that the jury clearly lost its way in
finding that Jones was the shooter. See State v. Patterson, 2017-Ohio-8318, 99
N.E.3d 970, ¶ 19 (8th Dist.), quoting State v. Phillips, 8th Dist. Cuyahoga No.
103325, 2017-Ohio-1284, ¶ 33, quoting State v. Hill, 8th Dist. Cuyahoga No. 99819,
2014-Ohio-387 (“‘“[a] conviction is not against the manifest weight of the evidence
solely because the [factfinder] heard inconsistent testimony”’”).
Therefore, Jones’s first assignment of error is overruled.
B. Witness-Intimidation Evidence
In his second assignment of error, Jones argues that the trial court
deprived him of a fair trial by admitting evidence of witness intimidation as well as
the “Free Frank” photo. Jones contends that the trial court improperly relied on
State v. Grimes, 1st Dist. Hamilton No. C-030922, 2005-Ohio-203, to support
admission of this evidence. Specifically, Jones contends that Grimes stands for the
proposition that evidence of witness intimidation unconnected to the defendant can
still be admitted to bolster witnesses’ credibility by explaining why these witnesses’
stories have changed or why they did not immediately come forward with
information about the crime. Jones maintains that admitting testimony about
threats in the instant case inverts the usual causal analysis for witness intimidation
because, here, that evidence surfaced inside the courtroom and during trial, not
outside the courtroom and before trial, which is usually the time when threats cause
witnesses to change their stories or withhold information. Jones distinguishes the
instant case because R.M. and A.H. never changed their stories, and R.M.
immediately identified Jones as the shooter. Jones argues that the trial court erred
in denying his motion for a mistrial based on the admitted evidence. The state
argues that the evidence was offered to support the witnesses’ credibility and show
that Jones was known as “Frank” to at least one other person than the state’s
witnesses.
A trial court has broad discretion to grant or deny a motion for a
mistrial and will not be reversed on appeal absent an abuse of discretion. State v.
Shine, 2018-Ohio-1972, 113 N.E.3d 160, ¶ 43 (8th Dist.), citing State v. Iacona, 93
Ohio St.3d 83, 100, 752 N.E.2d 937 (2001), citing State v. Sage, 31 Ohio St.3d 173,
182, 510 N.E.2d 343 (1987). “A mistrial should not be declared in a criminal case
merely because some error or irregularity has occurred unless the substantial rights
of the accused or the state have been adversely affected.” State v. Smith, 8th Dist.
Cuyahoga No. 70855, 1997 Ohio App. LEXIS 3760, 40 (Aug. 21, 1997).
A trial court also has broad discretion concerning the admission of
evidence. State v. Harris, 8th Dist. Cuyahoga No. 102855, 2016-Ohio-391, ¶ 14,
citing State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175.
“The decision whether to admit or exclude evidence is subject to review
under an abuse of discretion standard, and absent a clear showing that
a trial court abused its discretion in a manner that materially prejudices
a party, an appellate court will not disturb an evidentiary ruling. An
abuse of discretion connotes more than an error in law or judgment,
but instead demonstrates perversity of will, passion, prejudice,
partiality, or moral delinquency. When applying the abuse of
discretion standard, an appellate court may not substitute its judgment
for that of the trial court.”
Id., quoting Pappas v. Ippolito, 177 Ohio App.3d 625, 2008-Ohio-3976, 895 N.E.2d
610, ¶ 19 (8th Dist.).
Testimony that a witness fears reprisal for testifying is admissible
because it is relevant to the witness’s credibility. State v. Payne, 8th Dist. Cuyahoga
No. 107825, 2019-Ohio-4158, ¶ 52. “This rule applies equally to third-party
intimidation that renders a witness reluctant to testify[.]” State v. Gibson, 8th Dist.
Cuyahoga No. 103958, 2016-Ohio-7778, ¶ 14, citing People v. Mendoza, 52 Cal.4th
1056, 132 Cal.Rptr.3d 808, 263 P.3d 1 (2011) (“[e]vidence that a witness is afraid to
testify or fears retaliation for testifying is relevant to the credibility of that witness
and is therefore admissible”).
Here, Officers Pelsnik and Foster testified that they struggled to
obtain information from King Kennedy residents due in part to their fear of reprisals
if they were seen cooperating with the police. M.L.B. testified that despite Detective
Vinson’s repeated attempts to schedule an interview so that he could identify the
shooter, M.L.B. delayed this meeting for a year and four months due in part to his
fear of retribution. Before testifying, A.H. had expressed repeated concerns to the
assistant prosecutor that she feared for her and M.L.B.’s safety and had even
considered leaving the courthouse before testifying. She stated that shortly before
she testified, she received threats and concerning images forwarded to her by M.L.,
who, along with several other witnesses, was present during the shooting but refused
to testify.
Similarly, in Grimes, 2005-Ohio-203, several witnesses to a shooting
reluctantly testified at trial and one witness offered inconsistent testimony. The
latter witness had identified the defendant as the shooter in a previously recorded
statement but testified at trial that she did not see the defendant do anything. The
state introduced the recorded statement, which also included allegations that the
defendant’s family had threatened the witness and had likely intimidated other
witnesses. The recording was played for the jury. The defendant moved for a
mistrial, which the trial court denied.
On appeal, the First District upheld the trial court’s denial of the
motion because the trial court had given the jury a limiting instruction that the
recording could only be used for the purpose of identification. The First District
overruled the defendant-appellant’s contention that the trial court had improperly
permitted the state to allude to witness intimidation by the defendant’s family and
friends. The First District reasoned that although “[i]t was never alleged that [the
defendant] himself attempted to intimidate any witness,” id. at ¶ 55, “the references
to witness intimidation were not improper because they were offered to demonstrate
why the witnesses’ stories had changed, and why some of the witnesses had not
immediately come forward to the police with information about the shooting.” Id.
at ¶ 56. The First District cited to State v. Carillo, 2d Dist. Clark No. ooCA0025,
2000 Ohio App. LEXIS 4727, (Oct. 13, 2000), in which the trial court had admitted
witness-intimidation evidence to bolster the witnesses’ credibility. Id. at ¶ 57. The
First District similarly reasoned that evidence of witness intimidation is admissible
“to show that the problem was not the with the evidence, but with the witnesses’
hesitance.” Id. at ¶ 58.
Consistent with Grimes, the trial court in the instant case admitted
the evidence so that the state could explain why witnesses such as K.R. and M.L. did
not appear at trial; why it took M.L.B. more than a year to meet with Detective
Vinson and identify his brother’s shooter; and why A.H. was reluctant to testify.
Further, to limit any prejudice to Jones, the trial court voir dired each juror to make
sure they understood Jones had nothing to do with the threats or images, the threats
could only be used when considering the witnesses’ credibility, and the “Free Frank”
photo could only be used for purposes of identification – that a member of the public
believed Jones was named “Frank.” Although A.H. testified that she received a
picture of R.M. on the witness stand, which included an image of a crossed-out rat
and stated that people were going to get “hurt,” this picture was never admitted into
evidence.
Jones construes Grimes, 2005-Ohio-203, as permitting evidence of
witness intimidation unconnected to the defendant in either of two narrow
circumstances: (1) to explain why witnesses changed their stories, and (2) to explain
why witnesses did not immediately come forward. Jones argues that neither of these
circumstances is present in this case because there was no allegation that the
witnesses changed their stories, and the identification witnesses testified that they
immediately came forward with information about the shooter, which shows that
they did not fear retaliation.
At trial, however, Jones cast doubt on whether R.M. had talked to the
police on the night of the shooting, observing that the officers who testified did not
recall that anyone had identified the shooter, the name of “Frank” did not appear in
any police reports, the photo array in which R.M. identified Jones as the shooter
followed the shooting by a full two weeks, and the identification had been initiated
by Detective Vinson, not R.M. Jones also cast doubt on whether R.M. and M.L.B.
told A.H. that “Frank” was the shooter after they arrived at the hospital following
the shooting. A.H. testified that she had spoken with several people who witnessed
the shooting, including her son M.L.B., but she was unable to get them to speak with
Detective Vinson or the assistant prosecutor. Eventually, M.L.B. met with Detective
Vinson a year and four months following the shooting and identified Jones as the
shooter. Jones even asked A.H. at trial why it had taken her several hours to relay
to Detective Vinson that R.M. and M.L.B. had identified “Frank” as the shooter after
they arrived to the hospital following the shooting.
Jones’s questions were intended to undermine the credibility of each
witness, the implication being that if any of the witnesses could identify the shooter,
why had they waited so long to make that identification to the police? The state
anticipated that at least two other witnesses would testify, but neither appeared.
K.R., the second shooting victim, did not appear despite the trial court’s issuing a
material-witness warrant to secure his appearance. M.L. also did not appear even
though the state announced her appearance in its opening statement. The state
offered evidence of witness intimidation not just to explain why these witnesses
never came forward, but also to explain why the witnesses who did come forward
did so reluctantly, after a period that Jones highlighted at trial as an unreasonable
delay, and only following Detective Vinson’s repeated attempts to reach them.
Jones also argues that the trial court misapplied Grimes, 2005-Ohio-
203, because in the instant matter, the evidence of witness intimidation surfaced at
trial, after the witnesses testified (as was the case with R.M. and M.L.B.), or just
before a witness testified (as was the case with A.H.), whereas Grimes concerned
evidence of witness intimidation prior to trial. In this case, however, the timing of
the witness-intimidation evidence is irrelevant because the evidence merely
corroborated M.L.B.’s prior testimony that he feared retaliation for identifying the
shooter and A.H.’s testimony that she, too, feared for her and her son’s safety.
M.L.B.’s and A.H.’s prior testimony also weakens Jones’s contention that admitting
the witness-intimidation evidence resulted in unfair prejudice because the jury had
already heard the witnesses say that they feared retaliation for testifying. The trial
court also limited any prejudice to Jones when it questioned each juror on the
record, and each juror stated that he or she would judge the case fairly and
impartially and use the evidence as instructed. See State v. Stallings, 89 Ohio St.3d
280, 297, 2000-Ohio-164, 731 N.E.2d 159, quoting State v. Phillips, 74 Ohio St.3d
72, 89, 1995-Ohio-171, 656 N.E.2d 643. (“‘A juror’s belief in his or her own
impartiality is not inherently suspect and may be relied upon by the trial court.’”).
A trial court is best positioned to determine the impact of a spectator’s
actions on jury deliberations. State v. Burnett, 8th Dist. Cuyahoga No. 79432, 2002
Ohio App. LEXIS 1948, 13-14 (Apr. 25, 2002), citing State v. Bradley, 3 Ohio St.2d
38, 40-41, 209 N.E.2d 215 (1965). Here, the trial court reviewed the evidence,
evaluated the effect of the evidence on each juror, and instructed the jury in order to
insulate Jones from potential prejudice. See State v. Alexander, 8th Dist. Cuyahoga
No. 106556, 2019-Ohio-451, ¶ 39 (“A trial court can minimalize potential prejudice
by limiting instructions * * * before submitting the case to the jury.”). Therefore, the
trial court did not abuse its discretion in denying Jones’s motion for mistrial or in
admitting testimony of witness intimidation for the purpose of determining the
witnesses’ credibility as well as the “Free Frank” photo for the purpose of identifying
“Frank” as Jones, which the trial court limited to the “belief” of a single spectator at
trial.
Accordingly, Jones’s second assignment of error is overruled.
C. Removal of a Juror from Deliberations
In his third assignment of error, Jones argues that the trial court
abused its discretion and deprived him of a fair trial by removing Juror No. 4 from
the jury deliberations. Jones contends that the jury appeared to be deadlocked when
issues involving Juror No. 4 emerged, and the day after Juror No. 4 was removed,
the jury returned a guilty verdict, resolving the apparent deadlock. Jones maintains
that Juror No. 4 could not be removed absent evidence of misconduct and the trial
court erred by removing Juror No. 4 instead of issuing a Howard charge. The state
argues that the parties and the trial court all agreed that Juror No. 4’s
confrontational behavior during the jury’s deliberations warranted his removal. The
state also argues that the trial court separately questioned the former foreperson and
newly elected foreperson to make sure their complaints about Juror No. 4 were not
calculated to remove a barrier to unanimity, and both jurors agreed that it was Juror
No. 4’s behavior, not his position on the case, that gave rise to the complaint.
Because the parties agreed to Juror No. 4’s removal, we review the
removal for plain error. When a party fails to object to an error in the trial court, a
reviewing court may only notice plain errors or defects affecting substantial rights.
Crim.R. 52(B). A reviewing court is subject to three limits when correcting plain
error:
“First, there must be an error, i.e., a deviation from the legal rule. * * *
Second, the error must be plain. To be ‘plain’ within the meaning of
CrimR. 52(B), an error must be an ‘obvious’ defect in the trial
proceedings. * * * Third, the error must have affected ‘substantial
rights[,]’ * * * mean[ing] that the trial court’s error must have affected
the outcome of the trial.”
State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16, quoting
State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Reversal is
warranted if the party asserting the error can show that “but for the error, the
outcome of the trial clearly would have been otherwise.” State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. Plain error should
be noticed “with the utmost caution, under exceptional circumstances[,] and only to
prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.
Both R.C. 2945.29 and Crim.R. 24(G) address removal of jurors
during criminal trials. State v. Zaragoza, 2d Dist. Montgomery No. 26706, 2016-
Ohio-144, ¶ 18, citing State v. Cunningham, 2d Dist. Clark No. 10-CA-57, 2012-
Ohio-2794, ¶ 45.
R.C. 2945.29 permits a court to replace a juror with an alternate “[i]f,
before the conclusion of the trial, a juror becomes sick, or for other
reason is unable to perform his duty[.]” Crim.R. 24(G)(1) similarly
provides that alternate jurors “shall replace jurors who, prior to the
time the jury retires to consider its verdict, become or are found to be
unable or disqualified to perform their duties.” Moreover, “[a]s of
2008, Crim.R. 24(G)(1) allows the court to replace a juror after
deliberations have begun.” State v. Hunt, 10th Dist. Franklin No.
12AP-103, 2013-Ohio-5326, P 71. “However, '[i]f an alternate replaces
a juror after deliberations have begun, the court must instruct the jury
to begin its deliberations anew.’” Id., quoting Crim.R. 24(G)(1).
Id.“A trial judge is empowered to exercise ‘sound discretion to remove a
juror and replace him with an alternate juror whenever facts are presented which
convince the trial judge that the juror’s ability to perform his duty is impaired.’”
State v. Brown, 2d Dist. Montgomery No. 24541, 2012-Ohio-1848, ¶ 46, quoting
State v. Hopkins, 27 Ohio App.3d 196, 198, 500 N.E.2d 323 (11th Dist.1985); see
also State v. Taylor, 2d Dist. Montgomery No. 28463, 2020-Ohio-3481, ¶ 18. A
court abuses its discretion when its decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). A decision is unreasonable when “‘no sound reasoning process * * * would
support that decision.’” AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
Here, two days after jury deliberations began, the trial court learned
that Juror No. 6, the original foreperson, decided to step down. The next day, Juror
No. 11, the newly elected foreperson, informed the bailiff that Juror No. 4 was
behaving aggressively toward other jurors and asked what happens if the jury cannot
reach a unanimous verdict. The trial court considered issuing a Howard charge, but
after reviewing the matter with the parties, suspended jury deliberations and
separately questioned Juror Nos. 11, 4, and 6 to learn more about the issue involving
Juror No. 4 before further instructing the jury. The trial court advised each juror
not to disclose any part of their deliberations.
Both Juror Nos. 11 and 6 stated that Juror No. 4 was monopolizing
deliberations, talking over other jurors, and at some points shouting at other jurors.
When asked to be quiet and let other jurors speak, Juror No. 4 replied, “Come over
here and make me shut up.” Juror No. 11 noted that Juror No. 4 was particularly
hostile to the former foreperson, had shouted at her on one occasion, and afterwards
sat down, his lip quivering and his eyes watering. This confrontation forced the jury
to discontinue deliberations and reconvene the following day. Both Juror Nos. 11
and 6 explained that even after implementing turn-taking rules and electing a new
foreperson to facilitate discussion, Juror No. 4 remained aggressive, causing other
jurors to disengage from deliberations. When asked if Juror No. 4 presented a
barrier to a unanimous verdict, Juror Nos. 11 and 6 both stated that it had nothing
to do with his position but rather with his manner of engaging in deliberations.
Juror No. 11 attributed Juror No. 4’s emotional outbursts to Juror No. 4’s sharing
that he had witnessed a close friend die during the shootings at Chardon High School
in 2012, which the trial court’s review of the record showed that Juror No. 4 had not
disclosed during voir dire before the jury was empaneled. The trial court therefore
elected to replace Juror No. 4 with an alternate and advised the jury that they had
to begin deliberations anew.
The record reveals that the trial court did not abuse its discretion
when it replaced Juror No. 4 with an alternate based on its findings that Juror No.
4 was dominating the deliberations despite several attempts to establish rules for
turn-taking, was aggressive to the point of physical confrontation with other jurors,
was disruptive to the deliberations, and was not entirely honest during voir dire. See
Zaragoza, 2016-Ohio-144, at ¶ 23 (juror was removed after having been found
unstable, disruptive to deliberations, and a safety threat to female jurors); see also
State v. Segines, 8th Dist. Cuyahoga No. 89915, 2008-Ohio-2041, ¶ 66 (juror was
removed for exhibiting odd behavior and not being entirely forthcoming). The trial
court and parties were in the best position to judge the jurors’ demeanor during
questioning. State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506,
¶ 42, citing State v. Glover, 35 Ohio St.3d 18, 20, 517 N.E.2d 900 (1988). After
questioning the jurors, the trial court and the parties both agreed that Juror No. 4’s
removal was necessary. For the foregoing reasons, the trial court’s decision to
remove Juror No. 4 was not an obvious defect in the trial proceedings, and even if it
were, Jones has not demonstrated that it affected the outcome of the trial.
Accordingly, Jones’s third assignment of error is overruled.
D. Constitutionality of the Reagan Tokes Law
In his fourth assignment of error, Jones argues that his indefinite
sentence under the Reagan Tokes Law violates (1) the constitutional right to a trial
by jury, (2) the separation of powers doctrine, and (3) due process. Our en banc
decision in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), overruled
the same challenges to the Reagan Tokes Law that Jones raises in this appeal.
Therefore, Jones’s fourth assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____________________________
MARY J. BOYLE, JUDGE
MICHELLE J. SHEEHAN, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR